If Desiree Lynch receives the most votes in Stockton City Council’s District 5 race, despite withdrawing from the campaign and facing six felony charges, her attorney says she will not accept or serve in the position. But questions remain about how the city would handle the seat and whether any legal proceedings would affect the outcome.
Stockton Mayor Christina Fugazi on Wednesday outlined the steps the city would follow after election results are certified, emphasizing that the election outcome, any legal challenge to Lynch’s eligibility and the process for filling a potential vacancy are separate matters.
Preliminary election returns show Lynch leading incumbent Brando Villapudua in the District 5 race, with 1,972 votes, or 53.60%, compared with Villapudua’s 1,707 votes, or 46.40%. Lynch withdrew from the race in August but remained on the Nov. 3 ballot after a judge rejected a petition to remove her name.
Lynch’s attorney, Allen Sawyer, told Stocktonia that she would not accept or serve on the City Council if she receives the most votes.
“I want to clarify that Desiree Lynch resigned from consideration for the City Council position before the election,” Sawyer said. “However, because her name remained on the ballot, she is currently ahead in the election results. She will not accept or serve in the position. This was a personal decision, and we ask that her family’s privacy be respected. She is grateful to everyone who supported her and appreciates their understanding as she focuses on the matters ahead.”
Can Lynch legally take office?
Lynch faces six felony charges stemming from allegations that she used Stockton addresses where prosecutors say she did not live to register to vote and qualify as a candidate for the District 5 seat.
The charges include three counts of perjury, one count of causing or allowing false voter registration and one count of filing a false nomination or declaration of candidacy. She also has been charged with one count of possessing an assault weapon.
The weapons charge was added Sept. 2 after investigators seized what prosecutors described as an illegal assault rifle while serving a search warrant at a north Stockton residence. Lynch has not entered a plea.
The San Joaquin County Registrar of Voters expects to publish certified election results after 5 p.m. Nov. 25, following completion of the vote count, ballot verification and required audits. Until then, reported totals remain preliminary.
“The people of District 5 deserve an accurate count, a lawful outcome and uninterrupted attention to their neighborhoods,” Fugazi said. “There are distinct steps under state election law and our City Charter. We must not confuse an election result, an eligibility determination and a council vacancy. Each has its own process, and none should be decided by political preference.”
Under the process outlined by the mayor, the City Council must formally adopt and record the certified election results and declare the candidate who received the most votes elected. The council’s role in that step is ministerial, meaning it cannot substitute its own judgment for the certified vote.
Questions about Lynch’s eligibility would be handled separately through the legal process.
In an Aug. 25 email to Stocktonia sent through city spokesperson Tony Mannor, Interim City Attorney Donald Larkin said the city would follow a court order or judgment if a court later determines the election winner is ineligible. The City Charter does not specify who formally determines whether a vacancy exists, and the city would seek direction from the City Council, Larkin said.
Stockton’s City Charter requires councilmembers to reside in their districts and be qualified electors there for at least 30 days before filing nomination papers. California Elections Code Section 16100 allows an elector to contest an election if the person declared elected was ineligible to hold the office at the time of the election.
Sawyer’s statement raises a separate question about how the city would handle the seat if Lynch receives the most votes but declines to serve. Her decision does not, by itself, establish how a vacancy would be legally recognized or filled.
If a court sets aside the election or a vacancy otherwise arises under applicable law, the city attorney would advise the city on the legal effect, including when the seat becomes vacant and how representation would be maintained while proceedings are pending.
Larkin also said the city might need to initiate a quo warranto action if a candidate is determined to be ineligible after taking office. The legal proceeding challenges a person’s right to hold public office.
How would a District 5 vacancy be filled?
If a vacancy is legally established, Stockton’s City Charter directs the City Council to appoint a replacement from among qualified electors of the affected district.
The mayor cannot make the appointment alone, and the candidate who finishes second in the election would not automatically receive the seat.
The appointee must meet the district’s residency and voter-eligibility requirements for at least 30 days before appointment, according to the mayor’s office.
The city also has an established public appointment procedure under Resolution No. 06-0121. It calls for public notice within five calendar days after the City Council recognizes a vacancy, followed by a 25-calendar-day application period, submission of eligibility and nomination materials, public interviews and council deliberations.
At least four City Council votes are required to make an appointment. The resolution provides for an appointment 10 to 30 working days after applications close.
District 3 Councilmember Michael Blower told Stocktonia he hopes qualified candidates would come forward if the District 5 seat becomes vacant. He said he would look for someone who is independent-minded and open to hearing different perspectives.
“I just want somebody that’s honest and ethical as well,” Blower said. He also emphasized the importance of ensuring an appointee actually lives in the district, amid ongoing scrutiny over residency questions in the council race.
Less than a week before the Nov. 3 general election, Villapudua was briefly detained by the San Joaquin County District Attorney’s Bureau of Investigations Political Corruption Unit. He told Stocktonia that investigators served search warrants as part of an ongoing investigation into allegations that he does not live in the district he represents.
The DA’s office confirmed the councilmember’s detention but said only that it was “for an investigation and service of search warrants.” Villapudua was released without charges, and the office said the investigation remains ongoing.
Villapudua did not immediately respond to questions from Stocktonia about the possibility that Lynch could receive the most votes in the election, whether he believes she should be allowed to take office while her criminal case is pending and what he would tell District 5 voters about the uncertainty surrounding the race.
Fugazi said she would ask the city attorney and city clerk to confirm the currently applicable appointment policy, any amendments and required deadlines before the recruitment process begins.
An appointment would be temporary under the City Charter. The appointee would serve until a special election is held or Dec. 31 following the next general election, when district voters would elect someone to serve the remainder of the unexpired term.
The mayor said she would request a written public explanation from the city attorney after election certification outlining the legally available options, applicable timelines and procedures if a vacancy is established.
“If District 5 ultimately has a vacancy, residents should know exactly how to apply, what qualifications are required and when the council will make its decision,” Fugazi said. “I will insist on public notice, equal consideration, open deliberations and strict adherence to the charter.”
Lynch’s pending criminal charges do not automatically disqualify her from taking office. Any determination of her eligibility would depend on the applicable legal proceedings and subsequent court ruling.